This week’s case is not exceptional on its facts, yet it conveniently illustrates a few important ideas:
1) Family Law litigation can have many ups and downs in terms of who is “victorious” at any given time;
2) It’s easy to run up enormous costs in the course of trying to come out ahead; and
3) Courts are mindful of how that back-and-forth of litigation can detrimentally affect the children of the marriage.
The mother and father had three children together, aged 14, 13 and 12. Once the parents separated, they agreed that the children would live with the mother, with access to the father on a specified schedule.
However, a dispute arose as to whether the mother was complying with their deal; this led to the father bringing several motions for contempt. Next, there had to be a separate trial, lasting 19 days, to deal with the unwinding of the parties’ financial affairs; A custody-and-access hearing followed soon after, lasting another 22 days. A later review of those arrangements took a 23-day trial-like hearing that took 10 months to complete.
At this point, the father’s legal costs for these proceedings totaled about $400,000; given that he had been successful in terms of the outcome of the various proceedings, the trial judge made an order making the mother liable to the father for that full amount.
The mother then brought an appeal, not only of that costs award but also of the various unfavourable substantive rulings (including one that adjudged that her children had suffered “emotional abuse” at her hands in the preceding 2.5 years. This involved a finding that the mother fostered the children’s distorted reality of their father, based on her own fear and dislike of him).
The Appeal Court began its judgment this way:
Before dealing with the issues raised on the appeal, it is worth recalling for mother and father the bigger picture. The trial judge devoted 45 hearing days to their custody and access dispute. The 2013 Order reversed the custody of the children. More than two years then elapsed before the parties were ready to argue the appeal. During that time, the children have lived with their father. They are now 14, 13 and 12 years old, and they have lived the last seven years of their lives in the shadow of their parents’ litigation. The children are entitled to a stable childhood, not one marked by uncertainties over their living arrangements and contact with their parents resulting from the bitter dispute between mother and father.
The appeal record filed by the parties is voluminous. In the months prior to the hearing, the parties generated a blizzard of new paper with their competing motions for fresh evidence…
In reviewing the trial judge’s reasons, the Appeal Court found no fault with them overall: for example, the trial judge’s factual finding that this was “an extreme case”, and that the children were suffering emotional abuse by the mother, was supported by the evidence. Still, for various complex reasons the Appeal Court did find that a review of the access arrangements was merited at this point (and suggested that the review should take no more than a few days – rather than the 20-plus days such a review had taken in the past). The mother’s access to the children was temporarily increased in the meantime.
This meant that in the appeal portion of the proceedings the mother had won some of her arguments, but the father had come out on top in others. In other words, success was divided; this played into the question of whether either of them should pay the legal costs of the other. Specifically, the mother asked the court to award her the full $207,886 she spent bringing the appeal, while the father asked for his costs totaling $124,440. In ruling on the costs issue, the Appeal Court wrote:
The parties enjoyed mixed success on the appeal and, as a consequence, mixed success in respect of the proceedings below. The fairest disposition of the costs of this matter is that the parties bear their own costs of the appeal, and I would reduce the costs payable by the mother to the father under the Costs Order for the proceedings below from $400,000 to $200,000, inclusive of fees, disbursements and taxes.
So even with a partial victory on the appeal, the mother was still on the hook to the father for more than $400,000. Even on a generous interpretation, it’s hard to call that a “win”.
For the full text of the decision, see:
Fiorito v. Wiggins, 2015 ONCA 729
